Preventing a Miscarriage of Justice – Letter 1

Below is the text of a letter sent to the Regional Senior Justice’s Office in an attempt to prevent a miscarriage of Justice.

Dear Regional Senior Justice

Service to all required parties (r. 74.18[3]) and notification of when a party has appointed counsel (15.03[2]) are fundamental to Justice. When they do not occur a miscarriage of justice is likely.

This is especially so when the required counsel for a litigation guardian (r.7.05[3]) is still not on file and neither they (if hired) or the litigation guardian has filed response to a property guardian’s accounts (originally unserved to most parties).

On June 30/2018 Justice Hackman had an opportunity to Order the parties to comply with the rules. I appeared at a hearing asking to be listed as a party, as I have a vested interest and was not been served. I requested Orders for proper service and the litigation guardian have required counsel. I noted that other parties required to be served by the rules were also not served.

Without all the required parties present, and without the required opinion of counsel for the litigation guardian (r. 7.08[4 a & b]), Justice Hackman delayed the review of an incapable person’s accounts, in my opinion leaving their assets at risk. His entire endorsement for that hearing is attached. Lack of service and required representation are not mentioned. There is no mention of other required parties were not in attendance and were also not served.

We are now 21 days from the Ordered Case management hearing, which did not occur in September as Justice Hackman allowed the property guardian to make arguments to delay the hearing until December, while refusing to hearing arguments that an earlier date was in the incapable person’s interest.

The litigation guardian has written that he has objections to the accounts. He did not file the required Notice of Objection (r. 74.18[7]) for the June hearing and has not as of this date. He cannot meet the rules and file in time before the case management hearing.

I am expected to attend case management without knowing the position of a significant party.

Further as there is no counsel on record for the litigation guardian their opinion on the litigation guardians’ position required for any settlement is unknown. This applies whether the litigation guardian agrees with the accounts or not. If there is counsel, I do not know what they have reviewed my Notice of Objection or not, as no service to them can be done without appointment.

I trust that you are as concerned about these lapses as I am.

I would suggest that the interests of Justice are best served by a delay in case management until all parties comply with the rules.

I would also suggest that these breaches are significant enough to suggest bias and provide grounds for appeal if hearing proceed under Justice Hackman. Replacing him would have no bearing on the hearings as aside from his breaches of the rules he is not ceased of the matter.

Yours truly,

Advertisements
Posted in Judges, Legal issues, Litigation Guardain, Uncategorized | Leave a comment

Professional Guardians – Pt. 1

Guardianship is the legal responsiblity for some aspect of a person’s life which they are unable to manage on their own.  It is a fiduciary relationship which requires the guardian to act honestly, in good faith, and strictly in the best interests of the beneficiaries of the guardianship.

Historically guardianship was developed to address the care and property of children with a deceased father. It has typically become a duty of a close relative. And from roman times has included stipulations to act in the interest of the person and not to profit from the control of any property and to account for ones guardianship. [1]

In recent time guardianship has been extended from children to cover incapable adults. These adults sometimes have significant assets – either through a lifetime of saving and investment or as a result of insurance settlements for the injuries that removed their capacity to act for themselves.

This change has also seen the rise of professional guardians that are typically for-profit organisations.

This article discusses the inherent conflict that emerges when a organisation has a duty to a specific person and also has a responsibility to it’s own charter and shareholders.

The first conflict is that an organisation cannot be held to account the same way that an individual can. From Roman times a guardian who breached their duty was not only financially liable but could also lose political and civil rights.[2] The concept of personal sanction remains where the guardian is a person as in the US case of April Parks [3]. Similar incidents have occurred in the UK.  The ability to not only seek restitution but to deny a guardian liberty to who abuses their position is a powerful sanction not available where the guardian is not a natural person.

Organisations are persons in law only. This removes the most severe sanction from organisations that act as professional guardians. They are not natural persons so cannot be denied personal liberty.

It also exposes the second major conflict – with only financial risk to ensure fiduciary duty the professional guardian’s analysis shifts to a profit/loss analysis based on the organisations liability and potential financial penalties weighed across the portfolio of guardianships assigned to the organisation.

The larger in size (both number of personnel and overall assets/profit) the professional guardian has the more tenuous the oversight to the organisations fiduciary duty to a specific individual and the more significant the organisations legal duty to its shareholders become. Typically, the compensation of senior executives has some tie to stock value. There is typically no tie the organisations fiduciary duties to people they have guardianship of.

This has numerous practical and policy implications. For example, when setting the compensation of people that implement an organisations guardianships senior executives focus is directed to what they are measured on, stock value and profit, not the organisations fiduciary duty to the person they have guardianship for – as such the guardianship is profit activity – not a fiduciary one.  It is also reflected in organisational policy, or lack thereof, to ensure that guardianships are implemented in the interests of the person – not the organisation. Policy has two costs, setting up and educating personnel about the policy, and most independent monitoring and enforcing the policy. Both are necessary to balance the profit motive with the organisations fiduciary obligations to the person they are professional guardian for.

The need for policy is especially important as in most common law jurisdictions the way to seek remedy for any potential breach is through the courts. Without policy, the organisations profit/loss analysis likely is based on the fact that statically those that might file motion regarding a breach are self-represented, as is increasingly the case throughout the world, while the professional guardian has access to legal counsel.

This is the third conflict – the power imbalance between individuals who might act in the persons interest and the professional guardian. This imbalance means that unless the breach is especially egregious or relations are very strained, the professional guardian is free to interpret their duties to the person with little concern for court oversight.

The next post will detail these conflicts as evidenced through my mother’s experience with a professional guardian – imposed by her court appointed counsel as a condition for that counsel supporting the removal of my mother from deplorable care.

[1] http://www5.austlii.edu.au/au/journals/UWSLawRw/2003/5.html

[2] Ibid footnote 30

[3] https://aaapg.net/tag/guardian-gary-neal-taylor/

Posted in BMO, Fiduciary Duty, Legal issues, Section 3 | Leave a comment

SCC Leave #37808 Memorandum of Argument

If you’re interested in a Self-represented persons memorandum of Argument which opens in you pdf viewer.

16 – Tab E Memorandum of Argument Section 1 – V

Whole application was about 580 pages.

New information to file – and leave to add claims based on that new information.

Posted in Legal issues, Uncategorized | Leave a comment

Alleged Charter 15 violation

Dear Premiere, Attorney General and Ontario Public Guardian;

This is to inform you that in addition to filing a Motion to admit New Information relating to an incapable persons financial statements, finally disclosed October 6, 2107, I will be seeking leave to modify my statement of claim for SCC Leave 37808 to include recently disclosed information the PGT uses different processes to evaluate management plans submitted by individuals and financial institutions.

This has the appearance the PGT violated my Charter 15 Rights. I would note that this cannot be due to changes in PGT policy as I have earlier inquired about PGT policies to the Attorney General and have a letter suggesting no policies changed.

On June 1 2015 the PGT rejected outright our property management plan because it did not contain a cash flow or income statement. The banks plan, currently under review contain neither as well – but rather than reject the plan and have them refile you are simply going to “request further details from BMO about cash flow”.

Had this process been applied in June of 2015 the PGT should not have rejected the plan outright, but requested further details of our plan. Had that process been followed in 2015 the PGT would have NOT been able to endorse a plan BMO’s had not even filed on June 2, 2015.  On that date our plan would the only plan filed and if it had not been rejected outtright would still be in play. Without the PGT’s endorsement of a plan BMO had yet to file, our plan would likely been successful due to the SDA criteria of closeness on the person, and the fact that a cash flow and income statement, accepted by the PGT finance department, was filed before the hearing.

BMO’s plan filed June 10, 2015 did not include a cash flow. The PGT in it’s official position (filed June 16, 2015) neither rejected or endorsed BMO’s plan. It is apparent now that this deceptive approach appears to be a material omission regarding the fact different processes were used to arrive at this position, than used to reject our plan 16 days earlier. The amended plan BMO filed about November 1, 2017 (2 years & 4 months later) does not include a cash flow or income statement and again is not being rejected.

Applying different standards and processes for individuals and financial institutions has the appearance of a Charter 15 violation given the documents in question are approved as part of the administration of Justice.

My intention is to file the Motion to admit New Information to SCC 37808 when I file any responding material to filings by other parties.

I would hope the Premiere and Attorney General will review the PGT’s actions throughout this case and outlined in my Nov.10, email to them and Here.

There is no leadership by the PGT on Elder Abuse, in fact there is the appearance they condone it by favouring banks in their evaluation processes and calling predatory bank fees – expenses.

Posted in Attorney General, BMO, Legal issues, Public Guardian | Leave a comment

Premier Wynne – PGT needs oversight to end Elder Abuse

On November 7, 2017 Premier Wynne promised $6 million to establish a consumer protection program to safeguard seniors from financial abuse and to help prevent physical abuse.

If Premier wants to combat financial & physical abuse she should increase oversight and direction to the Ontario Public Guardian and Trustee.

Any reasonable persons would consider – an incapable person paying MORE for a service that will return – Financial Abuse.  Especially it the financial instution is an appointed guardian, has a fudiciary duty to the person, but the payments for the service only benifit the financial institution.

There are protections against this. SDA 40(3) states:

The guardianor attorney may take an amount of compensation greater than the prescribedfee scale allows,
(a) .. if consent in writing is given by the Public Guardian and Trustee and by the incapable person’s guardian of the person

I had written the PGT asking if SDA 40(3) was going to be followed. The PGT’s response was

“Ontario courts have held that investment fees can properly be charged to an estate as an expense, rather than as part of compensation. Accordingly, s. 40(3) of the SDA does not apply and the consent of the PGT and personal care guardians is not required.‎”

The PGT’s position that SDA 40(3) does not apply as the fee is an expense removes statutory protection for an incapable person for fees in excess of SDA 40(1) and appears to exsist solely to skirt the statuory protections for the person under SDA 40(3).

Worse the characterization the fees are an expense does not jive with facts. The bank describes in its literature and letters the cost for this advice as a fee.  The advice is provided by the bank – not an independent third party which seems necessary for the fee to be considered an expense. If the bank is in fact deducting from taxable income, money received for providing a service , there is the appearance of tax avoidance which deserves investigation.

Further the PGT’s suggestion that “Ontario courts have held” investment advice as an expense in other specific cases is without merit.  Courts deal with the application of statute and case law to the particulars of a specific case. No court has reviewed the specific circumstances in THIS case. If the PGT believe SDA 40(3) does not apply they should bring a motion to court, site those cases (if they exist).

I wonder whether any court would approve an incapable persons being charged more for the service of investment advice that the service provides int returns, when there is an option – leave the money in cash.  My Mother is financially better off – though the bank makes less money. That appears consistent with the banks fudiciary duty.

Unfortunately unusal interpertations of the SDA, and their duties to incapable prsons, is par for the course for the PGT.

In 2015 the PGT supported this bank as property guardian before they had filed a plan. Later a plan was filed but the PGT finance department required it be amended. Two years later an amended plan was finally filed – without a cash flow or income statement.

I had to ask 4 times if the PGT were apply the same standards of review to property management plans submitted by individuals as by financial institutions. At one point the PGT said the same standards do apply, but later it became clear they don’t. Individuals have to provide cash flow and income statements, banks apparently do not. Of banks plan with no cash flow the PGT writes:

I did not say that BMO ‎would be refiling their plan with a cash flow and income statement.

It appears contrary to Section 15 of the Charter of Rights to have different standards of review depending on who the party is, for documents the PGT ultimately submits to the courts for approval.

Condoning Potential Financial Abuse

The bank did not follow the first filed plan – which the PGT knew – leaving the person at financial risk. Quarterly reports, proposed in the June 10, 2015 plan were not provided for 2.5 years.  When a complete financial picture was finally provided on October 6, 2017 it revealed:

  • a transfer of $442K from an account my mother had chosen, to the property guardian, while my Mother was  ‘deemed capable’. She did not authorize the transfer. No one else had authority to make that transfer at that time. The bank was entitled to bill $13.2k on receipt of that money. Not disclosing that transfer, or who authorized, appears to be a material omission of fact that it may have influenced several court decisions.  This situation arose as the PGT took no action on my numerous requests the June 10, 2015 plan must be followed per SDA 32(10) until an amended plan was filed under 32(11).
  • Also disclosed was a $42.4K in payments to the S. 3 lawyer. This amount is for work the lawyer was NOT hired for, relating to a court hearings the lawyer could NOT participate in.
  • In addition there is a $3K in payment to the same S. 3 lawyer to research collections when legitimate bills are guaranteed by statute (SDA 3(2)).
  • A further $3.5K the S. 3 lawyer billed my mother to write the property guardian’s management plan, consult with them to approval it, and swear the required affidavits. The appearance is my mother’s S.3  lawyer is also working for the property guardian.

That the property guardian approved paying the lawyer for fees they benefited from has the appearance of a conflict of interest. This is reinforced as the S. 3 lawyer ‘negotiated’ the property guardian’s fees to manage my mother’s assets –  including the proposed investment advice fees, which statute says she had no authority to authorise.

While my mother was still ‘deemed capable’, the PGT approved of a proposal that my mother’s PoA for property be replaced with an interim Order (April Order) directing the S. 3 lawyer to instruct the financial institution.  Part of the April Order required my mothers belongings, removed by my brother to his house, to be returned to her. The Order was not followed.

Later the property guardian brought a motion my mother’s property, in the possession of others and not missed by her, could be kept by them until her death. One protection my mother lost by the PGT not insisting the June plan be followed, was a requirement the property guardian consult her regarding her property. Neither the PGT appointed S. 3 lawyer or the PGT endorsed property guardian spoke to her about the motion, or whether she missed her property, before supporting the motion in court.

Neither informed the court the property in question was earlier Ordered returned, but that Order was not followed. The PGT knew of this but did nothing.

Condoning Potential Physical Abuse

My consent to the April Order was obtained as the S. 3  lawyer said they would not approve the removal of my mother from care where she was:

isolated, left in excrement, not fed to control vomiting etc.

The PGT had been copied on correspondence regarding this apparent physical abuse and did not investigate as statute requires.

Later when affidavits were filed that physical assault may have also occurred – the PGT again did not investigate. They also made no submissions to the court when the lawyer and counsel for the alleged abuser brought a motion to suppress the affidavits outlining it.

Material Ommissions of Fact to Court?

On Feb 24, 2016 the property guardian paid the S. 3 lawyer approx $163K for services. The next day that S. 3 lawyer, the property guardian’s counsel and PGT counsel appeared before the Appeal Court of Ontario requesting the S. 3 lawyer be relieved of their duties.

None of them informed the court that without an entered Order declaring my mother incapable the property guardian could not be formally appointed, therefore the interim April Order above remained in effect.

The S. 3 lawyer (who the day before had been paid handsomely) and property guardian are fiduciaries to my mother yet they, and the PGT (who was in attendance) seemed to forget to inform the court of the ongoing need for S. 3 under the April Order. The PGT later argued it was my duty to bring this to the attention of the court.

My mother was left without the protection of a Court Order outlining financial responsibilities while the bank controlled her $1.4M in assets without oversight or authority. This situation arose because it appears the  PGT believe they have no duty to protect the finances of presumed incapable person when the PGT is before the courts.

Respecting Person Charter Rights and intent of SDA

The PGT does not seem to understand the role of competence in autonomy, or the SDA provisions ensuring that Charter 7 Rights to autonomy are respected.

The PGT not intervening to stop, in fact supported, changing my mothers PoA for property when she was ‘deemed capable’ is one example.

In August 2015, despite a capacity assessment finding my mother incapable and a Judges decision of incapacity, the PGT argued the  S.3, hired to purportedly act on my mother’s instruction, should remain representing my mother.

SDA 2 states that a person should be considered capable as long as there is no reason to believe they are not. Surely a capacity assessment my mother is incapable and a judges decision, are reasonable grounds to assume the person is incapable. If one is not capable one cannot instruct a lawyer. This is the fundamental issue for with leave is being sought under (SCC #37808).

Conclusion

If the Premier is serious about ending financial and physical abuse in Ontario she should look to her own house. The PGT seems to desperately and IMMEDIATELY need oversight and direction.

Long-term the legislation mandating LTC homes report potential physical and financial abuse to the police should be extended to include all PGT personnel and those they hire to work with a presumed incapable persons, including S. 3 counsel & litigation guardians.

 

Posted in Attorney General, BMO, Capacity, Elder Abuse, Fiduciary Duty, Public Guardian, Section 3 | Leave a comment

Responding to Michael Childs claim of Defamation

You have been advised that any actions taken as litigation guardian require you to be represented by counsel. You have not provided the name of your counsel.

On April 25, 2015 you were ordered to return Mom and her belongings to her home. You did not return her coin and stamp collection, though by an earlier email you acknowledged you were aware that Andrew had removed these belongings to his property.

As litigation guardian you should be aware, that BMO under their June 10, 2015 plan stated that they would provide quarterly asset reports. They have not met that obligation. You also should be aware that under SDA 32(10) “a guardian shall act in accordance with the management plan established for the property.” That Justice Tranmer provided time to file an amended plan does not remove the requirement for BMO to operate according to a plan the PGT had described as inadequate. This is clearly stated in the first 6 words of 32 (11) If there is a management plan, it may be amended”.  A plan can only be amended if there is a 32(10) plan that must be followed.

The nature of the relationship between yourself and BMO does not appear to be arms length or independent. Ms. Maysekies cost docket shows numerous meetings between your counsel and BMO.  On October 22, 2016 BMO brought a motion that property in the possession of children could be retained by them until Mom’s death. The only such property was the coin and stamp collections you did not return as Ordered on April 25, 2015.  Your counsel was in attendance at that hearing, as were you. Neither brought to the Judges attention your failure to comply with the April Order, and the property referred to was the coin and stamps.

Subsequent to that hearing Ms. Mayeski’s docket show’s several emails and conversations between herself and your counsel regarding the return of the coins and stamps.  The suggestion is that you and BMO have a very close relationship. As they have never consulted with Mom, despite numerous SDA paragraphs requiring them to, the inclusion of that paragraph must have been suggested by one of the parties.

From Feb 25, 2016 to June 1, 2016 there were frequent requests for quarterly reports to provided, to the current date.  You were copied on these requests.  Regardless of BMO’s duty under their plan,  to provide quarterly statements, when statements are received, such as on June 1, 2016, they come through you not BMO. The June 1 2016 statement covered the period May 11 – December 9, 2015 and was described by you as covering the “EnCircle transactions for the period during which Ms. Griesdorf was interim manager of Mom’s assets (i.e. April to December 2015).”

At the time you asserted your role “As litigation guardian, I am willing to undertake an informal detailed accounting well before the two year deadline, and to share all such information with family members. I will do so when there exists an approved management plan. ” There was an approved management plan as a plan cannot be amended unless their is an approved plan (32 (10 & 11).

As litigation guardian you should be familiar with SDA  paragraph “25. (1) An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property.” You were at the August 21, 2015 hearing where Justice Tranmer stated that without an entered  order Mom was still deemed capable. You were in attendance on June 25, 2016 when the formal order was finally entered declaring her incapable. Until that time she was deemed capable and BMO could not be appointed property guardian.

Recently it was again you, not BMO that sent two accounts. This, again, suggests  BMO forwards information to you, and it is you that elects to forward it. I assume my request to the Supreme Court of Canada, that if my appeal is granted, BMO be ordered to provide accounts, motivated that disclosure as the accounts arrived the day after you were served.

In reviewing those accounts it is immediately apparent that a transfer of $442K occurred on May 19, 2016, when BMO was not property guardian so could not have lawfully authorized it; and both you, and BMO in the affidavit of Lindsay Dunn, acknowledge that Ms. Griesdorf was no longer interim manager.

You were asked the question “Please provide who authorized the May 19, 2016 transfer? Under what authority? When was it authorized?”

Your responding email states “I have *voluntarily* passed on all financial records which have come into my possession and I have stated that I will attempt to address relevant issues at the appropriate time.” Note that you state that forwarding financial records is according to you, voluntary.  I do not put much credence in you statement that you have forwarded all financial records – given you did not return mom’s property when ordered to, and there is that appearance of working with BMO to add a clause to their motion so that failure is erased.

I would have thought that as litigation guardian you would consider knowing who transferred $442K, there was not authority for, would be relevant. I deduce that you do not find it relevant, as you are now saying that you could not refuse to provide the information as you do not know who carried out the transfer. Given your duties as litigation guardian, and having been asked to find out who carried out this transfer, not knowing can occur because you refused to ask, have asked and have not been told but will not say that you have not been told, or you were told and have refused to say who carried out the transfer. All suggest a degree of refusal on your part.

Recently BMO informed another party that all questions to it should go through you, suggesting that asking you to find out who carried out the transfer was appropriate and correct. And that BMO expects you to pass on, or filter, those questions.

Given the relationship between yourself and BMO please provide a sworn affidavit that you have received no statements regarding any of mom’s accounts from BMO covering any period after December 09/2015 until 3 days before the statements you forwarded to us on September 21, 2017.

On October 6 you forwarded statements covering $220K in of unreported outflows that you had received from BMO on 3 days earlier. I do not understand why BMO would not send this directly, or why you would sit on it for 3 days. BMO send the material directly – so there is providence for legal accountability.

I note that despite your statement on June 1, 2016 and Ms. Dunn’s affadavit of November 2016 that Ms. Griesdorf ceased to be involved after December, 2015 – the address labels on the statement up to April 2016 are addressed to Wendy Griesdorf, suggesting continued involvement.

In accepting a transfer they would financially benifit from BMO appears to have breached their fiduciary duty to Mom. They may have become complicity in what appears to have occured through misrepresentation. In not asking who carried out a transfer you should know should not have occured, you too may become complicit.

I have altered the sections of my web site you find offensive, noted that you have threatened me with defamation, and posted your email.

Please remember that, as litigation guardian you are liable, are required under the Rules of Procedure to have counsel, and have been advised to get counsel.

I have provided you until Friday 8am October 13, 2017 to inform me of such counsel as I will be filing a report covering the above with authorities.

Posted in BMO, Litigation Guardain, Section 3 | Tagged | Leave a comment

Draft Supreme Court Leave

Attached is link to dropbox that has my draft leave docs. I have until Friday a 3:30 for comments

I have until Friday a 3:30 for comments. If you want to make anomonous comments i hope this provides a method.

I approve comments and will no if you do no want to be.

Posted in Uncategorized | Leave a comment